In December of 2017, the United States Civil Rights Commission held a public briefing addressing the school-to-prison pipeline, paying special attention to students of color and students with disabilities and the impact of school suspensions and expulsions. There’s a debate centering around whether bias is at play in school discipline. (You can watch the archived livestream here.)
As usual, the Commission then opened a window for written public comments. I wrote a memo to the Commission to help place the conversation about disproportionate school discipline into context: school discipline is just one manifestation of a larger and well-studied criminal justice phenomenon. (This blog posts summarizes my comments; if you want to read my full memo, click here.)
Rates of disparate school discipline for students of color and students with disabilities parallel the disparate local and national rates of arrest, incarceration, and executions of people of color and people with disabilities. It is reasonable to infer that that the identified causes of those disparities are likely to be similar to — if not the same as — the differential rates of school-based discipline.
Efforts to claim that questions about school discipline are new and mysterious ignore the wealth of available data and expertise going back as far as the 1950s. None of these questions are novel, and the feigned confusion about how we could possibly know when and where bias against students of color and students with disabilities affects the imposition of punitive discipline are disingenuous.
Within the research, it is undisputed that the juvenile and adult justice systems come into more frequent contact with people of color and people with disabilities than their white and non-disabled counterparts. It is also undisputed that the consequences at each point of the interaction are more severe for people of color and people with disabilities. Here are some examples:
- Black and white adults use marijuana at equivalent rates, but Black people are 3.7 times more likely to be arrested for marijuana possession.
- When convicted for felony crimes in the same jurisdiction, Black adults are incarcerated 51 percent of the time while white adults in the same jurisdiction are incarcerated only 38 percent of the time.
- Black youth in their state’s juvenile justice systems are more than four times as likely to be committed to secure facilities than their white counterparts. In six states, that disparity is more than ten-to-one.
- Native youth are twice as likely to be admitted to adult prisons than their white counterparts.
- All people with disabilities are 13 times more likely to be arrested than people without disabilities. And more than 55 percent of Black people with disabilities are arrested before the age of 28.
Bias is notoriously difficult to document, particularly where researchers are not recording data themselves but instead relying on the records kept by those whose behavior is under scrutiny. But a study in Cook County, Illinois, for example, found that when controlling for all other variables, judges demonstrated racial bias: “We find evidence of significant interjudge disparity in the racial gap in incarceration rates, which provides support for the model in which at least some judges treat defendants differently on the basis of their race. The magnitude of this effect is substantial.”
It is impossible to find a credible study that concludes that the difficulty of ascertaining the degree to which bias influences disparities means that no further investigation would be appropriate. In fact, those who study the issue consistently conclude that the undisputed statistical disparities point to a need for deeper investigation of specific systems, more complete data collection, and additional targeted research.
An attempt to frame the very same phenomenon when it appears in schools as the result of applying unbiased policies and practices ignores decades of relevant research. Schools are integral to, not separate from, our civic experience. Every person — child and adult — who shows up in a school building also exists outside of that building and within our larger civic context, a context that includes our law enforcement and justice systems. Discussions about when and how statistical evidence of disproportionality should trigger an investigation cannot be had in a vacuum; they should, instead, be grounded in the substantial body of research and evidence outside the schoolhouse walls.
Many of those who believe that the statistical differences in student discipline can be explained away by out-of-school factors or by objectively different student behavior have been pushing to nullify a 2014 guidance letter issued jointly by the Departments of Justice and Education. That letter made clear that significant disproportionality in the administration of suspensions and expulsions could lead to a federal investigation.
Evidence of disproportionality in the administration of punitive discipline strategies — both at school and in the justice system — is not sufficient to identify bias. It is, however, a leading indicator of where bias may be found if one were to investigate. Additionally, all of the existing research shows that a targeted inquiry is the only way to determine whether bias is, or is not, the underlying cause of the disparity.
The Commission is expected to review all of the briefing materials and public comments and release a public report, as it typically does. These reports are non-binding on government agencies but may include commentary about pending legislation or suggest new guidelines. I expect that this report will make a specific recommendation about rescinding or maintaining the 2014 joint guidance package on school discipline. Where bias does lead to differential treatment, federal civil rights protections must be enforced and constitutional and statutory protections against discrimination are implicated.